Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C.

Annotate this Case

In 2005, Evangelos Dimitrakopoulos retained the law firm of Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C. ("Borrus firm"), for help with a business dispute with Steven Eleftheriou. Represented by the Borrus firm, Dimitrakopoulos and his wife filed a complaint against Eleftheriou and his wife. For undisclosed reasons, the Borrus firm filed a motion to withdraw as counsel shortly after it was retained. Days later, the Borrus firm filed a complaint against Dimitrakopoulos, alleging that its former client owed it $93,811.95 in fees for legal services and that payment had been demanded and not made. Dimitrakopoulos, acting pro se, filed an answer to the collection complaint but filed no counterclaim or third-party claim. In a proceeding before an arbitrator six months after the collection action was filed, the Dimitrakopouloses and the Eleftherious settled their dispute. In light of the settlement, the arbitrator did not issue an award. Months later, the court in the collection matter granted the Borrus firm’s unopposed motion for a final judgment by default in the amount of $121,947.99 for legal services, interest, attorneys’ fees, and court costs. Dimitrakopoulos did not appeal. A total of sixteen months elapsed between the filing of the Borrus firm’s collection action and the entry of the default judgment in that action. After the resolution of the business dispute between the Dimitrakopouloses and the Eleftherious, the collection action remained pending for an additional ten months. On September 10, 2015, approximately three years after the entry of judgment in the collection action, the Dimitrakopouloses sued the Borrus firm and the principal attorneys who worked on their matter for legal malpractice. Defendants moved to dismiss the complaint based on the "entire controversy" doctrine and the doctrine of waiver. The Dimitrakopouloses argued that the damages claimed in the malpractice action were known to them as of September 6, 2011, the day that they settled their dispute with the Eleftherious. The trial court concluded that the Dimitrakopouloses could have asserted their malpractice claim in the collection matter. An Appellate Division panel affirmed that judgment and stated that under Olds v. Donnelly, 150 N.J. 424 (1997), legal malpractice claims were exempt from the entire controversy doctrine to the extent that they need not be asserted in the underlying action. The New Jersey Supreme Court concluded the collection action at issue in this matter was not an “underlying action” as that term was used in Olds, and that the entire controversy doctrine could bar the claim. The record of this appeal, however, was inadequate for an application of the equitable rules that governed here. The Court therefore reversed the Appellate Division, and remanded the case for further proceedings.

SYLLABUS

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

Evangelos Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C.
(A-46-17) (080357)

Argued October 10, 2018 -- Decided March 7, 2019

PATTERSON, J., writing for the Court.

The entire controversy doctrine seeks to impel litigants to consolidate their claims
arising from a single controversy whenever possible. If a party fails to assert a claim that the
entire controversy doctrine requires to be joined in a given action, a court may bar that claim.
In this appeal, the Court reviews a judgment dismissing a legal malpractice claim asserted by
two clients against their former counsel. The malpractice claim was not asserted until three
years after the conclusion of a collection action filed by the law firm against the clients to
recover unpaid legal fees.

In 2005, Evangelos Dimitrakopoulos retained the law firm of Borrus, Goldin, Foley,
Vignuolo, Hyman and Stahl, P.C. (Borrus firm), for assistance in a business dispute with
Steven Eleftheriou. Represented by the Borrus firm, Dimitrakopoulos and his wife filed a
verified complaint against Eleftheriou and his wife. For reasons that the record does not
disclose, the Borrus firm filed a motion to withdraw as counsel shortly after it was retained.

On March 7, 2011, the Borrus firm filed a complaint against Dimitrakopoulos,
alleging that its former client owed it $93,811.95 in fees for legal services and that payment
had been demanded and not made. Dimitrakopoulos, acting pro se, filed an answer to the
collection complaint but filed no counterclaim or third-party claim.

In a proceeding before the arbitrator on September 6, 2011 -- six months after the
collection action was filed -- the Dimitrakopouloses and the Eleftherious settled their dispute.
In light of the settlement, the arbitrator did not issue an award.

On July 12, 2012, the court in the collection matter granted the Borrus firm’s
unopposed motion for a final judgment by default in the amount of $121,947.99 for legal
services, interest, attorneys’ fees, and court costs. Dimitrakopoulos did not appeal.

Accordingly, a total of sixteen months elapsed between the filing of the Borrus firm’s
collection action and the entry of the default judgment in that action. After the resolution of
the business dispute between the Dimitrakopouloses and the Eleftherious on September 6,
2011, the collection action remained pending for an additional ten months.

1
On September 10, 2015, approximately three years after the entry of judgment in the
collection action, the Dimitrakopouloses sued the Borrus firm and the principal attorneys
who worked on their matter for legal malpractice. Defendants moved to dismiss the
complaint based on the entire controversy doctrine and the doctrine of waiver. The
Dimitrakopouloses argued that the damages claimed in the malpractice action were known to
them as of September 6, 2011, the day that they settled their dispute with the Eleftherious.

The trial court concluded that the Dimitrakopouloses could have asserted their
malpractice claim in the collection matter. An Appellate Division panel affirmed that
judgment and stated that under this Court’s decision in Olds v. Donnelly, 150 N.J. 424, 443
(1997), legal malpractice claims are exempt from the entire controversy doctrine to the extent
that they need not be asserted in the underlying action. The panel confirmed, however, that
the underlying action was the litigation between the Dimitrakopouloses and the Eleftherious,
not the Borrus firm’s collection action. Like the trial court, the panel concluded that during
the remaining ten months of the collection action, the Dimitrakopouloses had a fair and
reasonable opportunity to litigate their malpractice claim. The panel did not reach the Borrus
firm’s waiver argument. The Court granted the Dimitrakopouloses’ petition for certification.
232 N.J. 280 (2018).

HELD: The Court reiterates its holding in Olds that the entire controversy doctrine does not
compel a client to assert a legal malpractice claim against an attorney in the underlying
litigation in which the attorney represents the client. 150 N.J. at 443. However, the
collection action at issue in this matter was not an “underlying action” as that term is used in
Olds, and the entire controversy doctrine may bar the claim. The record of this appeal,
however, is inadequate for an application of the equitable rules that govern here.

1. The entire controversy doctrine embodies the principle that the adjudication of a legal
controversy should occur in one litigation in only one court. The doctrine seeks to impel
litigants to consolidate their claims arising from a single controversy whenever possible.
When a court decides whether multiple claims must be asserted in the same action, its initial
inquiry is whether they arise from related facts or the same transaction or series of
transactions. The determinative consideration is whether distinct claims are aspects of a
single larger controversy because they arise from interrelated facts. (pp. 16-18)

2. The entire controversy doctrine raises special concerns when invoked in the setting of
legal malpractice. Olds, 150 N.J. at 446. In Olds, an attorney representing the plaintiff in a
medical malpractice action allegedly failed to timely serve documents on a defendant
physician. Id. at 428-29. The Court found that the client’s legal malpractice claim remained
unaccrued until the client’s medical malpractice claim was dismissed, id. at 439, and that
“the risk of the disclosure of privileged information and the generally adverse effects on
attorney-client relationships outweigh any benefit from requiring a client to assert a
malpractice claim in the pending lawsuit,” id. at 441-42. The Court therefore held that “the
entire controversy doctrine no longer compels the assertion of a legal-malpractice claim in an
underlying action that gives rise to the claim.” Id. at 443. (pp. 18-21)

2
3. The mandatory joinder of malpractice claims in collection actions, however, does not
raise the concerns identified in Olds. An attorney’s collection action is not an “underlying
action” for purposes of Olds, and may provide an appropriate forum for the assertion of a
malpractice counterclaim. (pp. 21-24)

4. That principle, however, does not end the analysis. The entire controversy doctrine is an
equitable doctrine whose application is left to judicial discretion based on the factual
circumstances of individual cases. In this appeal, the Dimitrakopouloses invoke two
equitable principles: the rule that the entire controversy doctrine does not apply to claims
that are unknown or unaccrued, and the requirement that once the claim accrued, the forum
of the earlier action must have afforded a fair and reasonable opportunity to litigate the claim
in order for the doctrine to apply. (pp. 24-26)

5. In the legal malpractice setting, the accrual date is not necessarily the date on which the
client actually knew the facts on which the malpractice claim is based. For the claim to
accrue, the client must sustain actual damage. For application of the discovery rule, the date
that a cause of action accrued is determined by the court alone and ordinarily by way of a
pretrial inquiry on either affidavits, depositions or a Lopez hearing conducted pursuant to
Lopez v. Swyer, 62 N.J. 267 (1973). A court charged to decide when a legal malpractice
claim accrued for purposes of the entire controversy doctrine should conduct a similar
inquiry, which may include an evidentiary hearing analogous to a Lopez hearing if necessary
to resolve factual disputes. The court’s careful evaluation of the facts is essential to ensure
that the entire controversy doctrine is applied equitably. (pp. 26-29)

6. Application of the entire controversy doctrine requires equality of forum. In that inquiry,
the court’s focus is whether the prior forum afforded the claimant a fair and reasonable
opportunity to investigate, assert, and litigate the contested claim, after that claim accrued. If
the client’s malpractice claim accrued before the collection action ended, then the court must
determine whether the client would have had a fair and reasonable opportunity at that point
in the collection action to assert and litigate that claim. The question whether the forum
provides a fair and reasonable opportunity to litigate the malpractice claim warrants a case-
specific inquiry. (pp. 29-31)

7. The record of this appeal is inadequate to resolve the issues. At the trial court’s
discretion, it may develop the record with additional submissions from the parties, conduct
an evidentiary hearing similar to a Lopez hearing on the discovery rule, and consider
summary judgment motions filed by the parties pursuant to Rule 4:46. Finally, the trial court
should consider on remand the Borrus firm’s contention that the Dimitrakopouloses waived
their right to pursue a malpractice claim. (pp. 32-34)

The judgment of the Appellate Division is REVERSED and the matter is
REMANDED to the trial court for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’S opinion.
3
SUPREME COURT OF NEW JERSEY
A-
46 September Term 2017
080357

Evangelos Dimitrakopoulos and
Matilde Dimitrakopoulos,

Plaintiffs-Appellants,

Borrus, Goldin, Foley, Vignuolo,
Hyman and Stahl, P.C., Steven L. Fox, Esq.
and Anthony B. Vignuolo, Esq.,

Defendants-Respondents,

and

Frazer Evangelista & Company, LLC,
and Ralph J. Evangelista,

Defendants.

On certification to the Superior Court,
Appellate Division.

Argued Decided
October 10, 2018 March 7, 2019

Jae H. Cho argued the cause for appellants (Cho Legal
Group, attorneys; Kristen M. Logar, on the brief).

James E. Stahl argued the cause for respondents
(Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl,
attorneys; James E. Stahl, on the brief).

1
Diana C. Manning argued the cause for amicus curiae
New Jersey State Bar Association (New Jersey State
Bar Association, attorneys; Robert B. Hille, President,
of counsel and on the brief, and Diana C. Manning and
Peter J. Gallagher, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

The entire controversy doctrine “seeks to impel litigants to consolidate

their claims arising from a single controversy whenever possible.” Thornton

v. Potamkin Chevrolet, 94 N.J. 1, 5 (1983) (quoting Alfone v. Sarno, 87 N.J.
99, 113 (1981) (internal quotation marks omitted)). The doctrine serves “to

encourage complete and final dispositions through the avoidance of piecemeal

decisions and to promote judicial efficiency and the reduction of delay.”

Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 610 (2015). If a party fails to

assert a claim that the entire controversy doctrine requires to be joined in a

given action, a court may bar that claim. R. 4:30A; R. 4:7-1.

In this appeal, we review the trial court’s judgment dismissing a legal

malpractice claim asserted by two clients against their former counsel. The

malpractice claim was not asserted until three years after the conclusion of a

collection action filed by the law firm against the clients to recover unpaid

legal fees. The trial court held that the entire controversy doctrine barred the

2
legal malpractice claim, and an Appellate Division panel affirmed that

decision.

We reiterate our holding in Olds v. Donnelly that the entire controversy

doctrine does not compel a client to assert a legal malpractice claim against an

attorney in the underlying litigation in which the attorney represents the client.

150 N.J. 424, 443 (1997). A collection action brought by a law firm against its

client, however, does not constitute such underlying litigation for purposes of

the principle stated in Olds. The assertion of a malpractice claim in such an

action -- in which the attorney and client are already adverse -- does not raise

the privilege and loyalty concerns that warranted the exception to the entire

controversy doctrine recognized in Olds. In appropriate settings, a court may

apply the entire controversy doctrine to preclude a legal malpractice claim that

a client has declined to assert in the attorney’s action to collect unpaid legal

fees.

The entire controversy doctrine, however, is constrained by principles of

equity. It “does not apply to unknown or unaccrued claims.” Wadeer, 220 N.J. at 606 (quoting DiTrolio v. Antiles, 142 N.J. 253, 273-74 (1995)).

Consequently, a client whose malpractice claim was not asserted in an

attorney’s collection action may avoid preclusion of that claim by proving that

he or she did not know, and should not reasonably have known, of the

3
existence of the claim during the pendency of the collection action. See Mauro

v. Raymark Indus., Inc., 116 N.J. 126, 135-36 (1989) (citing Ayers v.

Township of Jackson, 106 N.J. 557, 583 (1987)); Cafferata v. Peyser, 251 N.J.

Super. 256, 260-61 (App. Div. 1991). Moreover, even if the malpractice claim

accrued before or during the earlier action, the client may avoid the entire

controversy doctrine by demonstrating that the prior forum did not afford “a

fair and reasonable opportunity to have fully litigated” the malpractice claim.

Gelber v. Zito P’ship, 147 N.J. 561, 565 (1997) (quoting Cafferata, 251 N.J.

Super. at 261). Those principles demand a thorough examination of the

individual case.

We conclude that the collection action at issue in this matter was not an

“underlying action” as that term is used in Olds, and that the entire controversy

doctrine may bar the claim. The record of this appeal, however, is inadequate

for an application of the equitable rules that govern here. That record does not

reveal when the cause of action for legal malpractice accrued or indicate

whether the malpractice claimants would have had “a fair and reasonable

opportunity to have fully litigated” their claim had they asserted it in the

collection action. DiTrolio, 142 N.J. at 273; see also Wadeer, 220 N.J. at 606;

Oliver v. Ambrose, 152 N.J. 383, 396 (1998). Those questions warrant further

consideration by the trial court based on an expanded record.

4
Accordingly, we reverse the Appellate Division’s judgment, and remand

this matter to the trial court for further proceedings.

In 2005, Evangelos Dimitrakopoulos settled a dispute with a business

associate, Steven Eleftheriou.1 As a term of that settlement, Dimitrakopoulos

and Eleftheriou formed a limited liability company, Integrated Construction

and Utilities, LLC (Integrated). The LLC’s members were Dimitrakopoulos’s

wife, Matilde Dimitrakopoulos, who owned a fifty-one percent interest, and

Eleftheriou, who owned the remaining forty-nine percent interest. Although

he was not a member of the LLC, Evangelos Dimitrakopoulos was the

exclusive agent for his wife in the management of the LLC and was

responsible for several aspects of its operations.

Apparently suspicious that Eleftheriou was diverting Integrated funds,

Evangelos Dimitrakopoulos retained the law firm of Borrus, Goldin, Foley,

Vignuolo, Hyman and Stahl, P.C. (Borrus firm). In October 2009, he and the

Borrus firm signed a retainer agreement, which set forth the hourly rates to be

charged for legal services by the two principal attorneys designated to work on

1
We summarize the factual background based on the record presented to the
trial court in connection with the Rule 4:6-2(e) motion to dismiss.

5
the matter, Steven L. Fox and Anthony B. Vignuolo, and by the firm’s

associates.2

In the retainer agreement, Evangelos Dimitrakopoulos agreed to fully

cooperate with the firm and pay all bills. The Borrus firm agreed to provide

“conscientious, competent and diligent services” and to “seek to achieve

solutions which are just and reasonable” for its client, but noted that “attorneys

cannot and do not warrant, predict or guarantee results or the final outcome of

any case.”

Represented by the Borrus firm, the Dimitrakopouloses filed a verified

complaint against Steven Eleftheriou and his wife Daniella Eleftheriou in the

Chancery Division. The record does not include the verified complaint filed

by the Borrus firm and does not reveal the claims that the Borrus firm asserted

on the Dimitrakopouloses’ behalf. Other than to note that Steven and Daniella

Eleftheriou filed a counterclaim, the record does not indicate what proceedings

took place during the initial stage of that action.

2
The undated retainer agreement in the record was signed by Evangelos
Dimitrakopoulos and by Vignuolo on behalf of the Borrus firm. The
agreement was not signed by Matilde Dimitrakopoulos and does not indicate
that Evangelos Dimitrakopoulos executed it on his wife’s behalf. Nonetheless,
it appears that the Borrus firm represented Matilde Dimitrakopoulos as well as
her husband in their business dispute with Eleftheriou.
6
For reasons that the record does not disclose, the Borrus firm filed a

motion to withdraw as counsel for the Dimitrakopouloses shortly after it was

retained. On December 17, 2009, the return date of the firm’s motion to

withdraw from the case, Evangelos Dimitrakopoulos and the Eleftherious

agreed that their dispute would be submitted to binding arbitration. The

Borrus firm represented that it would submit to the court a list of potential

arbitrators and that it would continue to serve as counsel for the

Dimitrakopouloses until the court appointed an arbitrator. The Borrus firm

and the Eleftherious’ counsel agreed to submit to the court a consent order by

which the court would appoint an arbitrator and dismiss the action pending in

the Chancery Division.

It appears that, after an arbitrator was selected, the Borrus firm was

permitted to withdraw as counsel and the Dimitrakopouloses retained

substitute counsel to represent them in the arbitration proceedings.

On March 7, 2011, the Borrus firm filed a complaint against Evangelos

Dimitrakopoulos in the Law Division. The firm alleged that its former client

owed it $93,811.95 in fees for legal services and that payment had been

demanded and not made. The Borrus firm represented that, in accordance with

N.J.S.A. 2A:13-6 and Rule 1:20A-6, it had advised Evangelos

7
Dimitrakopoulos in writing of his right to pursue fee arbitration.

Notwithstanding the fact that Matilde Dimitrakopoulos was also its former

client, the Borrus firm did not name her as a defendant in the collection action .

Evangelos Dimitrakopoulos, acting pro se, filed an answer to the

collection complaint. He admitted that the Borrus firm had demanded payment

of its outstanding legal fees, that those fees remained unpaid, and that he had

been advised of his statutory right to pursue fee arbitration. Dimitrakopoulos

denied, however, that he had “promised to pay for services which were

unnecessary and contrary to [his] direction.” He filed no counterclaim against

the Borrus firm, or any third-party claim.3

In a proceeding before the arbitrator on September 6, 2011 -- six months

after the collection action was filed -- the Dimitrakopouloses and the

Eleftherious settled their dispute. The terms of that settlement are not in the

record. In light of the settlement, the arbitrator did not issue an award.

3
A certification purporting to comply with Rule 4:5-1(b)(2) was attached to
Evangelos Dimitrakopoulos’s answer in the collection matter. That
certification did not conform to the language of Rule 4:5-1(b)(2), which
broadly mandates disclosure of related actions and parties. Instead of stating
whether “the matter in controversy is the subject of any other action pending in
any court or of a pending arbitration proceeding” and “whether any other
action or arbitration proceeding is contemplated,” as the Rule requires,
Dimitrakopoulos certified only that the matter “is not the subject matter of any
other suit presently in any court or in any American Arbitration proceedings”
and that he knew of “no other parties to the suit.”
8
Later that month, the court in the collection matter granted the Borrus

firm’s unopposed motion to suppress Evangelos Dimitrakopoulos’s answer for

failure to provide complete and responsive certified answers to interrogatories

pursuant to Rule 4:23-5(a)(1). The court imposed that remedy without

prejudice. The Borrus firm then sought suppression of the answer with

prejudice and the entry of a default judgment against Evangelos

Dimitrakopoulos. He opposed that motion, and the trial court declined to

suppress his answer with prejudice. The court ordered Dimitrakopoulos to

respond to specified interrogatories and gave him additional time to provide

the discovery. Evangelos Dimitrakopoulos evidently failed to comply with

that order.

On July 12, 2012, the court in the collection matter granted the Borrus

firm’s unopposed motion for a final judgment by default in the amount of

$121,947.99 ($93,811.95 on a book account for legal services; $19,788.99 in

prejudgment interest; $7935 in attorneys’ fees; and $412.05 in court costs)

plus post-judgment interest. Evangelos Dimitrakopoulos did not appeal the

final judgment against him.

Accordingly, a total of sixteen months elapsed between the filing of the

Borrus firm’s collection action and the entry of the default judgment in that

action. After the resolution of the business dispute between the

9
Dimitrakopouloses and the Eleftherious on September 6, 2011, the collection

action remained pending for an additional ten months.

On September 10, 2015, approximately three years after the entry of

judgment in the collection action, Evangelos and Matilde Dimitrakopoulos

sued the Borrus firm, Fox, and Vignuolo for legal malpractice. In their

complaint filed in the Law Division, the Dimitrakopouloses alleged that the

Borrus firm had agreed to binding arbitration of the business dispute without

their consent. They asserted that their attorneys were negligent in failing to

amend the Chancery Division complaint to assert claims relating to a

competing business established by Steven Eleftheriou and that the omission of

claims relating to that new business had limited their recovery in arbitration.

The Dimitrakopouloses also claimed that their counsel improperly conducted

discovery, declined to inform them about developments relevant to their case,

and failed to obtain an adequate expert’s report, and that the firm’s bills were

inappropriate. The Dimitrakopouloses sought compensatory and punitive

damages and other relief.

The Borrus firm, Fox, and Vignuolo moved to dismiss the complaint for

failure to state a claim on which relief could be granted under Rule 4:6-2(e),

based on the entire controversy doctrine and the doctrine of waiver. The

10
Dimitrakopouloses opposed the motion. They argued that they were not

obligated to assert a counterclaim for malpractice in the collection case

because the six-year statute of limitations on malpractice actions had yet to

run, and because they did not know during the pendency of the underlying

action that their former counsel had committed malpractice. At oral argument,

the Dimitrakopouloses informed the trial court that the damages claimed in the

malpractice action were known to them as of September 6, 2011, the day that

they settled their dispute with the Eleftherious.

The trial court agreed that the entire controversy doctrine did not compel

the Dimitrakopouloses to assert their malpractice claim during the underlying

action in which the Borrus firm had represented them but concluded that the

Dimitrakopouloses could have asserted their malpractice claim in the

collection matter. The court found that the Dimitrakopouloses were aware of

their malpractice claim when they resolved their dispute with the Eleftherious

and that the ten months after, during which the collection action continued,

afforded a reasonable period in which to pursue a malpractice claim. The

court entered an order dismissing the malpractice action with prejudice

pursuant to Rule 4:6-2(e).

The Dimitrakopouloses appealed the trial court’s judgment. In an

unpublished opinion, an Appellate Division panel affirmed that judgment. The

11
panel acknowledged that the entire controversy doctrine does not preclude

claims that are unknown, unarisen, or unaccrued and does not bar any cause of

action if the prior forum did not afford a full and fair opportunity to litigate the

claim. The panel stated that under this Court’s decision in Olds, legal

malpractice claims are exempt from the entire controversy doctrine to the

extent that they need not be asserted in the underlying action. The panel

confirmed, however, that for purposes of the entire controversy doctrine, the

underlying action was the litigation between the Dimitrakopouloses and the

Eleftherious, not the Borrus firm’s collection action.

Noting the Dimitrakopouloses’ concession that their damages were

ascertained when the underlying action concluded in September 2011, the

panel reasoned that, by that point in time, the malpractice claim had accrued.

Like the trial court, the panel concluded that during the remaining ten months

of the collection action, the Dimitrakopouloses had a fair and reasonable

opportunity to litigate their malpractice claim. The panel did not reach the

Borrus firm’s waiver argument.

We granted the Dimitrakopouloses’ petition for certification. 232 N.J.
280 (2018). We also granted the motion of the New Jersey State Bar

Association (NJSBA) to appear as amicus curiae.

12
II.

The Dimitrakopouloses urge that we reverse the Appellate Division’s

judgment and hold that their claim is not barred by the entire controversy

doctrine. They assert that when the collection action was filed, they were

representing themselves and were unaware that they had a claim for

malpractice. They contend that any application of the entire controversy

doctrine that requires a pro se litigant to identify a malpractice claim would be

contrary to public policy. The Dimitrakopouloses assert that they did not have

a fair and reasonable opportunity to litigate their malpractice claim in the

collection action because a collection action involves only attorneys’ fees.

The Borrus firm, Fox, and Vignuolo contend that we should affirm the

Appellate Division panel’s judgment, or, in the alternative, remand the matter

to the trial court for a determination of the date on which the

Dimitrakopouloses’ malpractice claim accrued. They observe that the

Dimitrakopouloses submitted no certification or other proof in support of their

contention that they were unaware of their malpractice claim until years after

the underlying action resolved. Noting Evangelos Dimitrakopoulos’s assertion

in the answer to the collection complaint that he was billed for legal work that

13
was unnecessary and contrary to his direction, the Borrus firm, Fox, and

Vignuolo argue that Dimitrakopoulos was clearly aware of his legal

malpractice claim when he filed that answer. They argue that the doctrine of

waiver, like the entire controversy doctrine, bars the malpractice claim.

Amicus curiae NJSBA urges that we affirm the Appellate Division’s

judgment, arguing that the Borrus firm’s collection lawsuit is not an

underlying action for purposes of Olds because it is not the case in which the

firm represented the Dimitrakopouloses and because it raises no concerns

about privileged communications between lawyer and client. The NJSBA

notes that when an attorney sues a client for outstanding legal fees, the client

has the right to request fee arbitration, a proceeding that permits a client to

preserve a legal malpractice claim against a later assertion of the entire

controversy doctrine. The NJSBA contends that unless the entire controversy

doctrine applies in the circumstances of this appeal, no attorney’s collection

judgment could be considered final because the client would be permitted to

bring a malpractice action at a later stage.

14
III.

A court considering a Rule 4:6-2(e) motion examines “the legal

sufficiency of the facts alleged on the face of the complaint,” Printing Mart-

Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989), limiting its

review to “the pleadings themselves,” Roa v. Roa, 200 N.J. 555, 562 (2010).

If the court considers evidence beyond the pleadings in a Rule 4:6-2(e) motion,

that motion becomes a motion for summary judgment, and the court applies the

standard of Rule 4:46. Ibid.; see also Wreden v. Township of Lafayette, 436 N.J. Super. 117, 128 (App. Div. 2014).

“At this preliminary stage of the litigation the Court is not concerned

with the ability of plaintiffs to prove the allegation contained in the

complaint,” and the plaintiff is “entitled to every reasonable inference of fact.”

Printing Mart-Morristown, 116 N.J. at 746. Accordingly, review of a

complaint’s factual allegations must be “undertaken with a generous and

hospitable approach.” Ibid. Nonetheless, if the complaint states no claim that

supports relief, and discovery will not give rise to such a claim, the action

should be dismissed. Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div. 2011); Camden Cty. Energy Recovery

Assocs., L.P. v. DEP, 320 N.J. Super. 59, 64-65 (App. Div. 1999).

15
An appellate court reviews de novo the trial court’s determination of the

motion to dismiss under Rule 4:6-2(e). Stop & Shop Supermarket Co., LLC v.

County of Bergen, 450 N.J. Super. 286, 290 (App. Div. 2017). It owes no

deference to the trial court’s legal conclusions. Rezem Family Assocs., 423 N.J. Super. at 114.

The entire controversy doctrine “embodies the principle that the

adjudication of a legal controversy should occur in one litigation in only one

court.” Cogdell ex rel. Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 15 (1989);

see also N.J. Const. art. VI, § 3, ¶ 4 (providing that, subject to court rules, “the

Law Division and the Chancery Division shall each exercise the powers and

functions of the other division when the ends of justice so require, and legal

and equitable relief shall be granted in any cause so that all matters in

controversy between the parties may be completely determined”). The

doctrine “seeks to impel litigants to consolidate their claims arising from a

'single controversy’ whenever possible.” Thornton, 94 N.J. at 5 (quoting

Alfone, 87 N.J. at 113).

Three significant concerns in the administration of justice support claim

preclusion under the entire controversy doctrine: “(1) the need for complete

16
and final disposition through the avoidance of piecemeal decisions; (2) fairness

to parties to the action and those with a material interest in the action; and (3)

efficiency and the avoidance of waste and the reduction of delay.” Wadeer,

220 N.J. at 605 (quoting DiTrolio, 142 N.J. at 267); accord Highland Lakes

Country Club & Cmty. Ass’n v. Nicastro, 201 N.J. 123, 125 (2009).

A series of court rules implement the entire controversy doctrine in our

courts. Subject to exceptions not relevant here, Rule 4:30A provides that “[n]on-

joinder of claims required to be joined by the entire controversy doctrine shall

result in the preclusion of the omitted claims to the extent required by the entire

controversy doctrine.” Rule 4:7-1 addresses the filing of counterclaims mandated

by the doctrine. In their initial pleadings, parties must also disclose in certified

form “whether the matter in controversy is the subject of any other action pending

in any court or of a pending arbitration proceeding,” and “whether any other action

or arbitration proceeding is contemplated.” R. 4:5-1(b)(2). That disclosure

requirement exists “to implement the philosophy of the entire controversy

doctrine.” Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:5-1

(2019).

When a court decides whether multiple claims must be asserted in the

same action, its initial inquiry is whether they “arise from related facts or the

same transaction or series of transactions.” DiTrolio, 142 N.J. at 267. The

17
doctrine does not mandate that successive claims share common legal issues in

order for the doctrine to bar a subsequent action. Wadeer, 220 N.J. at 605;

DiTrolio, 142 N.J. at 271. Instead, “the determinative consideration is whether

distinct claims are aspects of a single larger controversy because they arise

from interrelated facts.” DiTrolio, 142 N.J. at 271.

The entire controversy doctrine raises special concerns when invoked in

the setting of legal malpractice. Olds, 150 N.J. at 446. If a lawyer’s handling

of a matter generates a malpractice claim, his or her subsequent invocation of

the entire controversy doctrine implicates the attorney-client relationship, the

lawyer’s ethical obligations, and client confidences. Id. at 440-43; see

N.J.S.A. 2A:84A-20(2)(c); N.J.R.E. 504(2)(c); R.P.C. 1.6(c)(2).

We first confronted an application of the entire controversy doctrine to a

legal malpractice claim in Circle Chevrolet Co. v. Giordano, Halleran &

Ciesla, 142 N.J. 280 (1995). There, we affirmed the dismissal of a legal

malpractice action brought by a commercial tenant against its former attorney.

Id. at 303. The tenant’s attorney allegedly committed malpractice when he

approved the landlord’s erroneous formula for the calculation of rent increases

as part of the settlement of a rent dispute. Id. at 286. Although the attorney

disclosed his mistake to his client and withdrew as counsel after filing an

18
action on his client’s behalf to reform the lease, the client waited until the

reformation action was settled before filing an action for malpractice against

its former counsel. Id. at 286-88. Rejecting the former client’s argument that

legal malpractice claims should be exempt from the entire controversy

doctrine, we held that the client was compelled to assert its malpractice claim

in the reformation action. Id. at 291, 303. Because the client had not done so,

we barred its claim. Id. at 303.

In Olds, decided two years after Circle Chevrolet, we again considered

the impact of the entire controversy doctrine on legal malpractice claims.

There, an attorney representing the plaintiff in a medical malpractice action

allegedly failed to timely serve the summons and complaint on a defendant

physician before withdrawing as counsel in the matter. Olds, 150 N.J. at 428-

29. The former client filed a legal malpractice claim against the attorney, who

moved to dismiss the action because the legal malpractice claim had not been

asserted in the underlying medical malpractice litigation as Circle Chevrolet

required. Id. at 430. The Appellate Division declined to bar the legal

malpractice action because it had not accrued until the court dismissed the

plaintiff’s medical malpractice claim against the physician. Id. at 431.

We affirmed and modified the Appellate Division panel’s judgment. We

concurred with the panel that the client’s legal malpractice claim remained

19
unaccrued until the client’s medical malpractice claim was dismissed. Id. at

439. We reiterated that the entire controversy doctrine “encompasses

'virtually all causes, claims, and defenses relating to a controversy’ between

parties engaged in litigation.” Id. at 433 (quoting Cogdell, 116 N.J. at 16).

Nonetheless, we characterized claim preclusion under Rule 4:30A as “a

remedy of last resort,” id. at 446, and cautioned that a court should determine

whether a remedy short of preclusion “will vindicate the cost or prejudice to

other parties and the judicial system,” id. at 448.

Most significantly, we directly acknowledged criticism of our decision

in Circle Chevrolet and conceded that our decision in that case had not

“fulfilled our expectations.” Id. at 440. We noted that when an attorney is

“made the adversary” and a client is forced to engage a second attorney to

pursue a legal malpractice claim in a pending litigation, the interests of the

first attorney and the client diverge. Ibid. We also recognized that the Circle

Chevrolet rule might force clients to forego malpractice claims in order to

maintain their legal representation until pending litigation is resolved, and that

“the requirement that clients join their attorneys in the original lawsuit

jeopardizes attorney-client confidences.” Id. at 440-41. We concluded that

“the risk of the disclosure of privileged information and the generally adverse

effects on attorney-client relationships outweigh any benefit from requiring a

20
client to assert a malpractice claim in the pending lawsuit.” Id. at 441-42.4

We therefore held that “the entire controversy doctrine no longer compels the

assertion of a legal-malpractice claim in an underlying action that gives rise to

the claim.” Id. at 443.

In Olds, we thus stated a core principle: the entire controversy doctrine

does not require an attorney’s current or former client to assert a legal

malpractice claim against that attorney in the litigation that gave rise to the

malpractice claim even if the two claims arise from the same or related facts

and would otherwise be subject to mandatory joinder. Ibid.

The Dimitrakopouloses argue that the collection matter in this case is

akin to the underlying litigation in Olds, and the limitations on the entire

controversy doctrine imposed in Olds preclude the doctrine’s application in

this appeal. The mandatory joinder of malpractice claims in collection actions,

however, does not raise the concerns that we identified in Olds when we

4
In Olds, we noted that malpractice claims arising from legal services in a
transactional matter are unlikely to raise the same concerns as claims arising
from a representation in litigation, as a transactional attorney “is not saddled
with the conflicting roles of advocating on behalf of the client in the
underlying litigation and representing his or her own interests as a defendant.”
150 N.J. at 442. We observed, however, that “[t]he line between transactional
and litigation representation . . . is not always clear,” and we declined to adopt
a separate rule for the application of the entire controversy doctrine to legal
malpractice claims arising from transactional matters. Ibid.

21
abandoned the rule of Circle Chevrolet. It is highly improbable that in the

wake of a collection complaint, a legal malpractice claim will disrupt a

harmonious attorney-client relationship. See Olds, 150 N.J. at 440. Asserted

as a counterclaim in a collection action in which the former attorney is the

only other party, a malpractice claim poses little risk to client confidences.

See ibid. A rule requiring such joinder is unlikely to pressure a client to

forego his or her malpractice claim out of concern that he or she will

antagonize trusted counsel. See id. at 440-41. In short, it is the rare case in

which a client’s litigation interests or his or her privileged communications

will be imperiled if the entire controversy doctrine mandates the filing of a

malpractice counterclaim in a current or former attorney’s collection lawsuit.

Indeed, as counsel for NJSBA noted at oral argument, clients sued by

their attorneys to collect outstanding legal fees commonly assert counterclaims

for malpractice in those actions. See, e.g., Puder v. Buechel, 183 N.J. 428, 430

(2005) (noting that the plaintiff client, sued for unpaid legal fees, asserted a

counterclaim based on allegations of legal malpractice); Alpert, Goldberg,

Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 522-23, 542

(App. Div. 2009) (dismissing on summary judgment a legal malpractice

counterclaim filed in response to attorney’s attempt to recover unpaid legal

fees); Newell v. Hudson, 376 N.J. Super. 29, 31-34 (App. Div. 2005) (same);

22
Charles A. Manganaro Consulting Eng’rs, Inc. v. Carneys Point Twp.

Sewerage Auth., 344 N.J. Super. 343, 347-48 (App. Div. 2001) (discussing the

need for an affidavit of merit pursuant to N.J.S.A. 2A:53A-27 when a client

asserts a counterclaim for malpractice in its former counsel’s collection

action); Glass v. Suburban Restoration Co, Inc., 317 N.J. Super. 574, 577-79

(App. Div. 1998) (dismissing a legal malpractice counterclaim filed in a

collection action). In practice, legal malpractice counterclaims are frequently

asserted as counterclaims in attorney collection actions, and litigated in tandem

with those claims.

The Dimitrakopouloses rely on our decision in Higgins v. Thurber, 205 N.J. 227, 228-30 (2011), for the proposition that the entire controversy

doctrine should not apply if the prior proceeding is a collection action. In

Higgins, we declined to apply the entire controversy doctrine to bar an estate

beneficiary’s legal malpractice and contract claims against the estate’s

attorneys. Ibid. Those claims were asserted after the conclusion of an action

to settle an account on an estate trust pursuant to Rule 4:87-1(a), a proceeding

we described as “a formalistic proceeding, unique to probate.” Id. at 229; see

R. 4:87-1(a). We reasoned that because that action’s “stylized format involves

a line-by-line review [of] the exceptions to an accounting,” and the action

focuses “'on the conduct of the executor, not the conduct of others,’” the entire

23
controversy doctrine “is out of place” and should not apply in that setting.

Higgins, 205 N.J. at 229 (quoting Perry v. Tuzzio, 288 N.J. Super. 223, 229

(App. Div. 1996) (holding that the entire controversy doctrine does not bar a

claim that was not asserted in a probate action for an accounting)).

We do not concur with the Dimitrakopouloses that an attorney’s

collection action is analogous to the probate accounting at issue in Higgins. A

collection action is not a specialized proceeding to confirm an executor’s

estate accounting, but rather a litigated matter in which the attorney’s handling

of the client’s case is directly at issue. A malpractice claim is by no means out

of place in such a proceeding. Higgins has no bearing on this appeal.

In sum, an attorney’s collection action against his or her client is not an

“underlying action” for purposes of Olds, and does not implicate the concerns

that prompted us to abandon the Circle Chevrolet rule. Such an action may

provide an appropriate forum for the assertion of a malpractice counterclaim.

That principle, however, does not end the analysis. As we have long

acknowledged, “the boundaries of the entire controversy doctrine are not

limitless. It remains an equitable doctrine whose application is left to judicial

24
discretion based on the factual circumstances of individual cases.” Nicastro,

201 N.J. at 125 (quoting Oliver, 152 N.J. at 396).

Because “the polestar for the application of the [entire controversy] rule

is judicial fairness,” a court must apply the doctrine in accordance with

equitable principles, with careful attention to the facts of a given case. K-Land

Corp. No. 28 v. Landis Sewerage Auth., 173 N.J. 59, 74 (2002) (alteration in

original) (quoting Reno Auto Sales, Inc. v. Prospect Park Sav. & Loan Ass’n,

243 N.J. Super. 624, 630 (App. Div. 1990) (internal quotation marks omitted)).

The doctrine’s equitable nature “bar[s] its application where to do so would be

unfair in the totality of the circumstances and would not promote any of its

objectives, namely, the promotion of conclusive determinations, party fairness,

and judicial economy and efficiency.” Id. at 70 (emphasis omitted) (alteration

in original) (quoting Pressler, Current N.J. Rules, cmts. 1 & 2 on R. 4:30A

(2002)). “In considering whether application of the doctrine is fair, courts

should consider fairness to the court system as a whole, as well as to all

parties.” Wadeer, 220 N.J. at 605.

In this appeal, the Dimitrakopouloses invoke two equitable principles:

the rule that the entire controversy doctrine does not apply to claims that are

unknown or unaccrued, see Wadeer, 220 N.J. at 606, and the requirement that

once the claim accrued, the forum of the earlier action must have afforded a

25
fair and reasonable opportunity to litigate the claim in order for the doctrine to

apply, see Gelber, 147 N.J. at 565. We consider each in turn.

As we held in Circle Chevrolet and reiterated in Olds, “the determination

of the accrual of a legal-malpractice claim for the purposes of imposing the

entire-controversy bar is like the determination of the accrual of the bar of the

statute of limitations.” Olds, 150 N.J. at 436 (citing Circle Chevrolet, 142 N.J.

at 296).5 In both decisions, we derived our analysis from the discovery rule,

the equitable principle governing statute of limitations cases that “triggers the

accrual of the statute of limitations for attorney-malpractice actions.” Ibid. As

Judge Pressler observed, “[t]he knowledge of the existence of a cause of action

which will invoke the entire controversy doctrine is the same as the knowledge

which will trigger the running of the statute of limitations in those cases to

5
The entire controversy doctrine and the statute of limitations are distinct
from one another; even if a claim is timely filed for purposes of the statute of
limitations, it must be separately analyzed in accordance with Rule 4:30A.
See, e.g., Vision Mortg. Corp., Inc. v. Patricia J. Chiapperini, Inc., 156 N.J. 580, 584-86 (1999) (addressing entire-controversy-doctrine and statute-of-
limitations issues separately and concluding that neither the statute of
limitations nor the entire controversy doctrine barred the plaintiff’s claim);
Cafferata, 251 N.J. Super. at 259 (considering the applicability of the entire
controversy doctrine to a claim that was filed prior to the expiration of the
statute of limitations).
26
which the discovery rule of deferred accrual is applicable.” Cafferata, 251 N.J. Super. at 260.

Principles developed in cases analyzing the discovery rule therefore

apply with equal force to the entire controversy doctrine. For statute of

limitations purposes, a cause of action accrues “when a plaintiff knows or,

through the exercise of reasonable diligence, should know of the basis for a

cause of action against an identifiable defendant.” The Palisades at Fort Lee

Condo. Ass’n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 447 (2017) (citing

Caravaggio v. D’Agostini, 166 N.J. 237, 246 (2001)); see also Kendall v.

Hoffman-La Roche, Inc., 209 N.J. 173, 191 (2012) (observing, in a medical

malpractice appeal, that a cause of action accrues when “the facts presented

would alert a reasonable person exercising ordinary diligence that he or she

was injured due to the fault of another” and that a plaintiff need not have legal

advice or an expert opinion in order for his or her cause of action to accrue);

Baird v. Am. Med. Optics, 155 N.J. 54, 66 (1998) (same).

In the legal malpractice setting, the accrual date is not necessarily the

date on which the client actually knew the facts on which the malpractice

claim is based; instead, that date “is set in motion when the essential facts of

the malpractice claim are reasonably discoverable.” Vastano v. Algeier, 178 N.J. 230, 242 (2003). For the claim to accrue, “[t]he client must sustain actual

27
damage.” Olds, 150 N.J. at 437 (citing Grunwald v. Bronkesh, 131 N.J. 483,

492 (1992)). As we noted in Grunwald, “[l]egally cognizable damages occur

when a plaintiff detrimentally relies on the negligent advice of an attorney.

Actual damages are those that are real and substantial as opposed to

speculative.” 131 N.J. at 495 (citation omitted). However, the client need not

have incurred all of his or her damages in order for the malpractice claim to

accrue. Ibid. (“[A] client may suffer damages[] in the form of attorney’s fees[]

before a court has announced its decision in the underlying action. It is not

necessary that all or even the greater part of the damages . . . occur before the

cause of action arises.” (quoting United States v. Gutterman, 701 F.2d 104,

106 (9th Cir. 1983))).

Our statute of limitations case law also provides guidance regarding the

procedure by which a judge determines when a cause of action accrued in

order to resolve an entire controversy doctrine dispute. For application of the

discovery rule, the date that a cause of action accrued is determined “by the

court alone and ordinarily by way of a pretrial inquiry on either affidavits,

depositions or a so-called evidential Lopez hearing” conducted pursuant to

Lopez v. Swyer, 62 N.J. 267 (1973). Pressler & Verniero, cmt. 36.2.2 on R.

4:5-4. “Obviously, however, if there is no dispute as to the facts controlling

the discovery determination, a Lopez hearing is not required.” Ibid.

28
A court charged to decide when a legal malpractice claim accrued for

purposes of the entire controversy doctrine should conduct a similar inquiry,

which may include an evidentiary hearing analogous to a Lopez hearing if

necessary to resolve factual disputes. See Dinizo v. Butler, 315 N.J. Super.
317, 322-23 (App. Div. 1998) (remanding matter for an evidentiary hearing to

determine when a claim accrued for purposes of the entire controversy

doctrine). As in statute-of-limitations determinations, the court’s careful

evaluation of the facts is essential to ensure that the entire controversy doctrine

is applied equitably.

As we have observed, “application of the [entire controversy] doctrine

requires equality of forum, that is, the first forum must have been able to

provide all parties with the same full and fair opportunity to litigate the issues

and with the same remedial opportunities as the second forum.” Hernandez v.

Region Nine Hous. Corp., 146 N.J. 645, 661 (1996) (alteration in original)

(quoting Perry, 288 N.J. Super. at 230); see also Gelber, 147 N.J. at 565;

Cafferata, 251 N.J. Super. at 261.

In that inquiry, the court’s focus is whether the prior forum afforded the

claimant a fair and reasonable opportunity to investigate, assert, and litigate

the contested claim, after that claim accrued. Thus, in DiTrolio, we

29
scrutinized the procedural history of the prior suit and found that the “plaintiff

had ample opportunity to have fully litigated the claim in the first action; he

simply chose not to.” 142 N.J. at 274. In contrast, the Appellate Division

panel deciding Cafferata concluded that the plaintiff had no meaningful

opportunity to litigate a medical malpractice claim in a Special Civil Part

collection action in which “[n]o judge was involved” and the proceeding “was

in effect an informal expedited mediation appropriate to small claims but

hardly to significant tort litigation.” 251 N.J. Super. at 261.

When, as here, an attorney seeks to bar a client’s malpractice claim

because that claim was not asserted as a counterclaim in a collection action,

the court’s determination of the date that the claim accrued may end the

inquiry. If the client’s legal malpractice claim accrued after the collection

action was resolved, then the client clearly had no opportunity to assert that

claim in the collection action, and the entire controversy doctrine does not

preclude it. R. 4:30A.

If, however, the client’s malpractice claim accrued before the collection

action ended, then the court must determine whether the client would have had

a fair and reasonable opportunity at that point in the collection action to assert

and litigate that claim. As does the court’s assessment of the timing of the

malpractice claim’s accrual, the question whether the forum provides a fair and

30
reasonable opportunity to litigate the malpractice claim warrants a case-

specific inquiry. The court may consider such issues as the steps required to

investigate, file and prosecute the malpractice claim in that forum, the status of

the collection action when the malpractice claim accrued, the time constraints

imposed by the rules of court, and the prospect of obtaining extensions of time

to litigate the malpractice claim.

In summary, the following principles derived from our case law govern

the application of the entire controversy doctrine to this appeal.

First, in order for the entire controversy doctrine to bar a legal

malpractice claim because that claim was not joined in a prior action, the two

claims must “arise from related facts or the same transaction or series of

transactions,” Wadeer, 220 N.J. at 605 (quoting DiTrolio, 142 N.J. at 267), but

need not share common legal theories, ibid.; DiTrolio, 142 N.J. at 271. That

requirement is clearly met in this case, in which the collection and malpract ice

claims derive from the Borrus firm’s legal representation of the

Dimitrakopouloses.

Second, the entire controversy doctrine does not require a client or

former client to bring a legal malpractice case in the underlying action in

which the attorney represented the client. Olds, 150 N.J. at 443-44.

31
Third, an attorney’s collection action against the client, in which the

attorney seeks payment of legal fees incurred in the representation of the

client, is not an “underlying action” within the meaning of Olds. Accordingly,

a client’s legal malpractice claim that is not asserted in the attorney’s

collection action may be barred under the entire controversy doctrine.

Fourth, a court should not preclude a claim under the entire controversy

doctrine if such a remedy would be unfair in the totality of the circumstances

and would not promote the doctrine’s objectives of conclusive determinations,

party fairness, and judicial economy and efficiency. Wadeer, 220 N.J. at 605;

K-Land, 173 N.J. at 70; DiTrolio, 142 N.J. at 273-74. A range of equitable

principles may apply to a particular case. Here, the core questions are when

the claim accrued, and whether, given the steps required to assert and litigate

the claim, the forum of the collection action then afforded the

Dimitrakopouloses a fair and reasonable opportunity to litigate the legal

malpractice claim.

The record of this appeal, developed for purposes of a motion to dismiss

for failure to state a claim under Rule 4:6-2(e), is inadequate to resolve the

issues. In this appeal, the “totality of the circumstances” analysis that our case

32
law mandates cannot be conducted based on the pleadings alone; that analysis

requires further proceedings on remand.

The parties dispute the date on which the Dimitrakopouloses’

malpractice claim accrued. Although they conceded before the trial court that

the malpractice claim accrued when their dispute with the Eleftherious settled

on September 6, 2011, the Dimitrakopouloses now maintain that their claim

accrued on a later date. The Borrus firm, Fox, and Vignuolo contend that the

malpractice claim accrued prior to September 6, 2011, but acknowledge that

the evidence on which they rely in that regard is not in the record on appeal.

Moreover, the appellate record contains scant information about the

collection action itself. We are not in a position, based on the record, to

determine whether, following the accrual of their cause of action, the

Dimitrakopouloses would have had a fair and reasonable opportunity to litigate

their malpractice claim had they brought that claim in the collection action.

The record is also inadequate for us to decide whether the Borrus firm’s

decision not to name Matilde Dimitrakopoulos as a defendant in the collection

action affects the application of the entire controversy doctrine to this appeal.

Those issues, and any other relevant questions that the trial court

identifies on remand, should be determined on an expanded record. At the

trial court’s discretion, it may develop that record with additional submissions

33
from the parties, conduct an evidentiary hearing similar to a Lopez hearing on

the discovery rule, and consider summary judgment motions filed by the

parties pursuant to Rule 4:46.

Finally, the trial court should consider on remand the Borrus firm’s

contention that the Dimitrakopouloses waived their right to pursue a

malpractice claim, as that claim was not reached when the trial court and the

Appellate Division considered the motion to dismiss.

IV.

The judgment of the Appellate Division is reversed, and the matter is

remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
PATTERSON’S opinion.

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